The Case for the Prosecution in the Ciceronian Era

Chapter One: Introduction

chapter one Introduction istorians generally study success: politicians who win, generals who conquer, and social groups that rise. However, the subject of this book is, in a sense, a study of failure: the failure of prosecutors—often presenting seemingly persuasive cases of criminal conduct—to overwhelm Rome’s greatest orator, despite weaknesses in his brief. Of the eleven trials analyzed in this volume, none de‹nitely resulted in condemnation, eight de‹nitely ended with acquittal, and two—or possibly three, if we opt for extreme caution in saying that we do not know the outcome of the trial of Roscius of Ameria (see chap. 8)—have uncertain outcomes. The failure of most or perhaps all of these eleven prosecutions is all the more remarkable because prosecutors must usually have believed that they had a real chance to win their cases. Criminal prosecutors at Rome were private individuals who applied to a court for the right to indict a citizen. They held no of‹ce that obligated them to bring wrongdoers to justice. The rewards for victory were glory primarily, the satisfaction of having ruined an enemy, and, under some laws, of‹cial praemia (rewards). There were no of‹cial rewards for the defeated prosecutor. To be sure, it was praiseworthy to be a bonus orator (as Cicero argues throughout the De oratore; see also Plin. HN 7.139 and Livy 30.1.5) and to defend victims of crimes by prosecuting the perpetrators; H 2 The Case for the Prosecution electoral opponents might be deterred from illegal acts by threats of impending prosecution (see [Q. Cicero?], Comment. pet. 57); and perhaps in a few cases, someone would set about a hopeless prosecution just to cause a nuisance to an enemy. But there were few kudos to be won by mounting prosecutions that had little or no chance of success. A prosecution that persuaded almost no jurors would bring an orator little respect (as well as making him vulnerable to a charge of calumnia; see “The Role of the Prosecutor” later in this chapter), and an orator would gain little psychic satisfaction from seeing the trial of a personal enemy end in a sea of votes for acquittal. So prosecutors must have generally thought that they had a good chance of winning their cases; otherwise, they would not have brought them forward in the ‹rst place. The exegesis of the eleven prosecutions in this book is intended partly to explain why the prosecutors involved believed they could win and, where we know they lost, why they were mistaken in that belief. Seneca the Elder (Controv. 3 pr. 16–17) tells the story that he once heard L. Cestius Pius, an eminent and conceited declaimer, boasting as he was about to deliver a speech in an imaginary prosecution of Milo in opposition to Cicero’s speech for the defense. Seneca humiliated Cestius in public and left him speechless, without a response, although, as Seneca remarks, Cestius thought that he could respond to Cicero. When Cestius told Seneca to leave, Seneca refused and even threatened Cestius with legal actions, ‹rst by a so-called law of an unspeci‹ed offense (“lege inscripti male‹cii”),1 then for ingratitude (“ingrati”); ‹nally, Seneca sought a curator (caretaker) for Cestius, charging that Cestius was insane. Seneca said that he would drop the charges only when Cestius took an oath that Cicero was more eloquent (“disertus”) than he. Cestius refused to take this oath, but Seneca (Suas. 7.13) reports that Cestius got his comeuppance later. When Marcus Cicero, the orator’s son and the governor of Asia in the mid- or late twenties B.C. or thereafter, learned that Cestius (a native of Smyrna), a guest at his table, had said that Cicero was illiterate (“hic est Cestius, qui patrem tuum negabat litteras scisse” [This man is Cestius, who said that your father was uneducated ]),2 the governor had his guest ›ogged.3 I begin this book with this anecdote to emphasize that I consider it a cautionary tale for me to keep in mind. My intention is not to outdo Cicero, to prove that his speeches were defective, or to refute him—and it is certainly not to challenge him by composing a speech, in any language. Less easy to dismiss is the challenge presented by the censure that Quin- tilian (Inst. 10.5.20) aimed at Cestius with regard to his speech...